upon actions for words, though the jury find the defendant guilty for speaking words falso et malitiose, and find it to be to the plaintiff's great damages; yet if the words are not such as will bear an action, the court stays judgment and if judgment happens to be given, it is reversable for error; which shews that the finding damages by the jury cannot make an action better than if it were to be adjudged upon demurrer.

I shall now consider what hath been said to maintain this action upon the main substance and foundation of it. They say, this is a case within the general reason of the common law, for here is malice, falsity and damage; and where they concur, there ought to be remedy. And although this be a new case, it ought not for that reason to be rejected; for other kind of actions have been newly introduced, and this is as fit to be entertained as any.

My brothers that argued even now for the action, shewed great learning and great pains; and certainly have said all that can be invented in support of this case; but as far as I could perceive, they have spoken only upon general notious to that purpose I just now mentioned; but nothing that I could observe applicable to the reasons and differences I go upon.

My brother Atkins said, the common law complied with the genius of the nation; I do not understand the argument. Does the common law change? Are we to judge of the changes of the genius of the nation? Whither may general notions carry us at this rate? For my own part, I think, though the common law be not written, yet it is certain, and not arbitrary. We are sworn to observe the laws as they are, and I see not how we can change them by our judgments; and as for the genius of the nation, it will be best considered by the parliament, who have power of the laws, and may bring us to a compliance with it.

In the Case at bar, I look upon the sheriffs as a particular officer of the parliament for the managing elections, and as if he were not sheriff; I look upon the writ as if it were an order of parliament, and had not the name of a writ; I look upon the course of parliament, which we pretend not to know, to be incident to the consideration of it; so that it stands not upon the general notion of remedy in the common course of justice.

The arguments of the falling of the value of money, whereby the penalty of 1007. provided by the 23 H. 6. is become inconsiderable; and the increase of the estimation of being a member of parliament; if they were true, are arguments to the parliament to change the law by increasing the penalty, but we cannot do it.

I must confess the judges have sometimes entertained new kinds of actions, but it was upon great deliberation, and with great discretion, where a general inconvenience required it.

If Slane's Case were new (for my brother Thurland observed truly it was said in that Case, that there were infinite numbers of precedents) that Case imported the common course of justice. Actions for words that are said to be new, though they have been used some hundreds of years, are a necessary means to preserve the peace of the kingdom. The Case of Smith and Craschaw, Cro. Car. 15, was a Case of general concern, being that prosecu tions for treasons may be against any man, and at any time.

But in the Case at bar, neither the peace of the kingdom, nor the course of justice is concerned in general, but only the administration of officers of the parliament, in the execution of parliamentary writs; and can never happen but in time of parliament, and must of necessity fall under the rotice of the parliament; so that if the law were deficient, it is to be presumed the parliament would take care to supply it discretion requires us rather to attend that, than to introduce new precedents upon such general notions that cannot govern the course of parliament.

I will not dispute the truth of what he said in this, but if his arguments were artificial, he might have spared them; for they have no manner of effect to draw me beyond my sphere.

I will not be afraid to determine any thing that I think proper for me to judge; but seeing I cannot find the courts of justice have at any time meddled with cases of this nature, but upon express power given them by acts of parliament, I cannot consent to this prece dent; I am confident when there is need, the parliament will discern it, and make laws to enlarge our power, so far as they shall think convenient.

I see no harm that sheriffs in the mean time should be safe from this new-devised action, which they call the common law; if they mus demean themselves, they are answerable to the parliament, whose officers they be, or may be punished by the statute, made for regulating elections.

It is time for me to conclude, which I shall do by repeating the opinion I at first delivered, viz. That this judgment is not warranted by the rules of law; that it introduceth novelty of dangerous consequence, and therefore ought to

Whereas sir Samuel Barnardiston brought his Writ of Error into this House, and hath assigned errors thereupon, to which sir William Soame was Defendant; who left Dame Catherine Soame, his widow, his executrix; and the House being moved, that the said Dame Catherine Soame may join issue thereupon; it is ordered by the Lords Spiritual and Temporal in Parliament assembled, That the said Dame Catherine Soame be, and is hereby required to join issue to the said Writ, on or before Thursday next, being the 30th instant, at ten o'clock in the forenoon; whereof the said sir Samuel Barnardiston is to cause notice to be given to the said Dame Soame, to the end she join issue accordingly.

June 1, 1689.

The House being moved, that they would be pleased to appoint a day for hearing the errors argued upon the Writ of Error brought into this House, wherein sir Samuel Barnardiston is

plaintiff, and dame Catherine Soame, widow;

executrix of sir William Soame, defendant: It is ordered by the Lords spiritual and temporal in parliament assembled, That this House will hear the said errors argued by counsel on both sides, at the bar, on Saturday next, being the 8th instant, at 10 of the clock in the forenoon; and in the mean time she may join issue if she please: whereof the said sir Samuel Barnardiston is to cause notice to be given to the said dame Catherine Soame, to the end she attend accordingly.

June 8, 1689.

This day being appointed for hearing errors argued by counsel, upon the Writ of Error between sir Samuel Barnardiston and the lady Soame, the counsel for the plaintiff appeared, but none appeared for the defendant: And upon oath made at the bar by Nicholas Baker,

solicitor, that he served the order of this House at the house of the lady Soane; thereby giving notice, that the cause was to be heard this day; whereupon the House heard the counsel of the plaintiff, and made the ensuing Order, viz.

After hearing counsel this day, upon the Writ of Error depending in this House, wherein sir Samuel Barnardiston is plaintiff, and dame Catherine Soame is defendant; it is ordered by the Lords spiritual and temporal in parliament assembled, the giving judgment on this until Monday next; and those that are, or Writ of Error be, and is hereby suspended, were judges, and now in town, do attend this House that day, to inform the House of their reasons and grounds for their judgment for reversal of the judgment in sir Samuel Barnardiston's case.

Ordered, That all the judges be present on Monday morning, to assist this House in this business of sir Samuel Barnardiston.

He taking notice that there was counsel present for sir Samuel Barnardiston, but no counsel for the lady Soame, he said, seeing the dehe might not be looked upon as counsel for the fendant did not appear with counsel, he desired defendant; upon that the company was commanded to withdraw: And the House ordered alone; who being come in, said, he would, for Mr. Mountague should be admitted to come in remember) acquaint them with the grounds and their lordships satisfaction, (as well as he can reasons which induced him to give his opinion for the reversal of that judgment; and so he proceeded to give the head of what he said, which being ended, he withdrew.

And after consideration thereof, it was moved that the counsel for sir Samuel Barnardiston should be called in, and the Speaker to acquaint

them with the effect of what Mr. Mountague

thereby to reply, for the better information of had said; that so the counsel might be able their lordships and the judges then present. whether the counsel shall be called in? It was And after some debate, the question was put, resolved in the negative.

Then it was moved to make use of proxies, which was opposed, as concerning their not being admitted in preliminary cases of judi

cature.

After hearing William Mountague, esq. for his judgment in sir Samuel Barnardiston's case, and debate thereupon, it is ordered, That the clerk do inspect the books concerning proxies ; and whether they have been used in cases of judicature; and give an account to-morrow morning what he finds therein: And that all the judges do attend the House to-morrow.

ber of this House, That he is served with an Order of the House of Lords, made on the Petition of Thomas Shirley, esq. to put in an Answer to the Petition on Friday next;

*The whole of the first volume of Mr. Hatsell's valuable Collection of Precedents relates to the matter of Parliamentary Privilege, and from the perusal of that volume it should seem to be a subject of considerable uncertainty. Neither its antiquity, nor its origin, nor its extent, appears to be well ascertained; and the diversity of opinions respecting it, is very remarkable.

It is part of that Ler et Consuetudo Parliamenti of which lord Coke tells us ista lex est ' ab omnibus quærenda, à multis ignorata, à paucis cognita. "We have seen," says Mr. Hatsell in the beginning of the fifth chapter of his first volume," in what manner the Commons were at different periods obliged to make new claims of privilege, and to exert new modes of maintaining and defending those claims, in proportion as the lengthening the duration of the session made other avocations inconvenient and incompatible with their first duty, and as the increase of their consequence in the state and their influence in the manage ment of affairs, rendered them more an object of the attention of the ministers of the crown,'

The whole of Mr. Hargrave's very learned Preface to lord Hale's Treatise on the Jurisdiction of the Lords' House of Parliament, is one Continued commentary of the unsettledness of this Lex et Consuetudo Parliamenti, and of disputes between the two Houses concerning their respective privileges. And the same topics are still farther illustrated by his opinions on the Cases of Bond and Butler, and of Perry. See Juridical Arguments, &c. vol. 1, p. 1. vol. 2, p. 183. I will add a few particulars. The House of Commons in their Apology and satisfaction to be presented to his majesty, (after asserting that their privileges and liberties were their right and due inheritance no less than their very lands and goods, and that their making of request in the entrance of parliament to enjoy their privilege, is an act only of manners, and doth weaken their right no more than their suing to the king for their lands by petition; whereas the king would have it that their privileges were derived * Inserted in Hatsell's Precedents Appendix to vol. 1, and also in 1 Cobb. Parl. Hist. 1030, from Petyt's Jus Parliamentarium.

*

VOL. VI.

Ordered, That the further consideration of the matter touching the Privilege of sir John Fagg, a member of this House, be adjourned from the grace and permission of his ancestors and himself, see 1 Hatsell 78, 138. 2 Hatsell 214, 215, 216.) avouch that their House is a court of record, and so ever esteemed; and in Fitzherbert's case, 1 Hatsell 109, they recite that they are a court of record. Lord Coke (Co. Litt. 260, a. see also 117, b.) describes a court of record to be a court of justice, which hath power to hold plea according to the course of the common law of real or mixed actions or of actions quare vi et armis, or of perSonal actions whereof the debt or damage amounts to 40 shillings or above. (No other court bath authority to fine or imprison. See 8 Coke's Reports 38 b. 60 b. 120 a. 1 Salk. 200. 3 Blackst. Comm. 24.) The House of Commons (see the Journals 10th and 11th of May, 1571,) assert, That they ordered a fine of 20l. to be assessed upon the corporation of in speaking of that particular case asserts, Westbury. Lord Mansfield, Burr. Rep. 1336, that no fine could be imposed in the House of Commons, and lord Hobart, in the case of the King against lady Arundel and Howard, Hob. Rep. 110, cited by Mr. Clifford in Flower's case, and lord Holt in the King and Queen against Knollys, 1 Salk. 511, do, it may be argued, deny that the House of Commons is a court of record, in asserting that the Journals are no records. Mr. Hatsell's book abounds in reports of contradictory interpretations as to the extent of the Privilege of Parliament, in matters of criminal prosecutions against members. In April, 1763 (see Wilkes's Case in that year, infra.) the Judges of the court of Common Pleas unanimously decided, That privilege of parliament extended to cases of writing and publishing seditious libels. Six months afterwards both Houses of Parliament resolved, that privilege of parliament did not extend to such cases. On Feb. 17, 1769, the House of Commons resolved, "That John Wilkes esq. having been in this session of parliament expelled this house, was and is incapable of be ing elected a member to serve in this present parliament," and in the course of several proceedings which subsequently occurred respecting Mr. Wilkes, that House of Commons uniformly adhered to that same doctrine. On May 3, 1782, it was resolved, That the resolu 4 C